Contents of issue # 5/2016

V. V. Lazarev, doctor of legal sciences, professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
22/24, Bolshoy Kharitonievsky lane, Moscow, Russia, 107078
E-mail: Lazarev@izak.ru

D. A. Fursov, doctor of legal sciences, professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
22/24, Bolshoy Kharitonievsky lane, Moscow, Russia, 107078
E-mail: fursovda@yandex.ru

The problem of establishing the nature of law has deep theoretical roots, because no one can reveal the phenomenon of law. In spite of various scientific aspects of this concept, in practice it is necessary to recognize its role as a single tool. The authors conclude that the court is not only the subject of the interpretation of the jus, not only the enforcer or entity conflict resolution relationship, it introduces its own innovations to the search for justice, it is the creator of the law. The article substantiates the role of the court not only as a guarantor of the existing legal system, but also as an institution imperatively harmonizing the system. The relevance of the study is explained by the fact that the establishment of the nature of law, even in the acts of the Constitutional Court of the Russian Federation is a very complex problem, which has not been adequately investigated, especially with regard to court’s decisions. But all courts create the “living law”. Without the will of the state, no law is possible, but the jus does not embrace the whole law and the latter always takes priority over the jus. Transformation of a legal activity in the aspect of searching for the law is necessary for all judicial authorities. If the first instance courts shut themselves within the framework of the law, their mission will be extremely limited. They won't even be able to outline the legal boundaries, where the authorized review judicial authorities and persons involved in the case could in-depth study, evaluate the circumstances associated with the search for and finding of the most justified solution. The authors believe that the law revealed in court decisions, forms the foundation of the rule of law and therefore requires additional account as an important information resource, necessary for the formation of unified law enforcement, for its use by a legislator for the purpose of implementing the models of legal relations, as reflected in the decisions, into legislative acts.

Keywords: the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, rule of law, judicial decision, implementation, law-making.

DOI: 10.12737/19086

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candidate of political sciences, associate professor
Kazan (Volga region) Federal University
18, Kremlevskaya st., Kazan, Russia, 420008
E-mail: raf.val.111@yandex.ru

Based on the problem situation conditioned by indeterminacy of institutional position of the standards of law enforcement ethics within the mechanism of contemporary law enforcement regulation, the author attempts to analyze the legal nature of the above standards. The study reveals that the legal nature of standards of law enforcement ethics is conditioned by the necessity to protect the identity of citizens and the law enforcement system itself from the negative impact produced by various forms of irregular conduct by subjects of law enforcement. As a result of comparing the standards of law enforcement ethics and the rules of law the author establishes that according to the technical-legal forms of their external expression and other attributes, as well as their regulatory potential, the standards of law enforcement ethics are comparable to the status of the rules of law. The study permits us to conclude that the standards of law enforcement ethics possess the classificatory identity typical of the protective rules of law represented by relations in the field of law enforcement activity. This identity is conditioned by the specificity of the subject of their regulation. The standards of law enforcement ethics are of subsidiary significance as they supplement and develop standards of status laws in matters of legal regulation of the moral aspect of the law enforcement activity. 

Keywords: rules of law, law enforcement, legal nature, standards of law enforcement ethics, professional ethics code, irregular conduct.

DOI: 10.12737/19087

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The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: sve-evs@yandex.ru

Today integrated legal entities are again in the focus of attention of the scientific community. Addressing this problem is so topical and popular that one can safely acknowledge persistent urge to consider any question of legal character mainly through the lens of determining the integrated nature of law. What’s to be done in this situation when it is necessary to determine the status of a relevant legal entity? Therefore, with a certain degree of objectivity the article notes important issues related to integrated legal entities, their formation within the legal framework, provides definition to the method of an integrated branch of law, demonstrates differences between the main branches of law and integrated legal entities. The article also identifies and sets forth possible ways to resolve the issues at the theoretical level. Taking into account considerable advantages provided by integral regulation, the author assumes that there will be a further surge in the interest towards these topics. 

Keywords: theory of state and law, system of law, integrated branch of law, subject and method of a branch of law.

DOI: 10.12737/19088

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doctor of legal sciences, professor, honored scientist of the Russian Federation
Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, Russia, 117418

The article reviews the issues of carrying out economic activities by juridical persons, their participation in civil-law transactions. The article touches upon the issues of carrying out business activities by non-profit organizations. The article investigates the problem of legal capacity of juridical persons, competencies of their bodies and the nature of juridical persons. The author considers the issues of performance of juridical persons’ civil obligations by their employees. The author concludes that the civil legislation regulates three groups of relations (activities): property and personal non-property relations, entrepreneurial activity and corporate relations. These separate legislative bodies represent accordingly the civil, entrepreneurial and corporate law. Thus, the Civil Code and the civil legislation embody three separate branches of law. 

Keywords: juridical person, corporate body, corporate rights and obligations, economic activity, body of a juridical person, responsibility of a body of a juridical person, legal capacity, ability to act.

DOI: 10.12737/19089

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doctor of legal sciences, honored lawyer of the Russian Federation
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: gabov@izak.ru

Reorganization of a legal entity entails significant risks for different stakeholders. These risks lie in the fact that as a result of reorganization of a legal entity, the structure of its assets and liabilities may cease to exist, or can significantly change. First of all, these risks affect creditors’ interests. Because of such risks the law provides special rights to creditors during reorganization of a legal entity – the debtor in respect of the obligation. Article 60 of the Civil Code of the Russian Federation grants creditors the right to demand early performance of obligations, should a legal entity – the debtor adopt the decision on its reorganization,  and if early performance is not possible, to require the termination of obligations and compensation for losses. The article analyzes the procedure for exercising of creditors’ special rights during reorganization of a legal entity. The author analyzes the original text of the Civil Code and subsequent amendments. Relevance of the article is determined by the changes in the procedure for exercising of the rights of reorganized legal persons’ creditors, which were introduced to article 60 of the Civil Code in 2014. The author concludes that the legislator has failed to find a proper (optimal) balance of interests in the current regulation of the relations between creditors and reorganized legal entities — debtors.

Keywords: legal entity, reorganization, creditors' rights.

DOI: 10.12737/19090

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candidate of historical sciences, associate professor
Southwest State University
94, 50 Let Oktyabrya st., Kursk, Russia, 305040
E-mail: elena.schakhova2013@yandex.ru

The article analyzes the effectiveness of a homeowners association activity as a form of managing residential apartment buildings, explores the concept of a “management company”, “homeowners association”, the differences between these legal entities, develops proposals on increasing the effectiveness of the housing management system based on the principles of consolidation of efforts and resources of the state and public through the introduction of new management models, with the active participation of civil society institutions, proposals for licensing of homeowner associations, as well as the possibility of getting a qualification certificate for the Chairman of the Board of the homeowners association, attaching to the Chairman of the Board the status of the sole governing body not only in civil, but also in housing legislation. The author investigates innovations in housing and civil laws, submits proposals on improvement of legal institutions, improvement of legal engineering, analyzes the institute for state control over the homeowners association’s financial and economic activities.

Keywords: housing and communal services, financial-economic activity, homeowners association, management companies, Chairman of the Board, Board members, state control, licensing of activities in the field of housing and communal services.

DOI: 10.12737/19091

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doctor of legal sciences, associate professor, honored lawyer of the Russian Federation
The department of corruption prevention of the Administration of the President of the Russian Federation
4, Staraya square, Moscow, Russia, 103132
E-mail: vim2007@yandex.ru

This article analyzes necessary defense, extreme necessity and other situations of legitimate harm (criminal defenses) in which, according to the Criminal Code of 1903, it was allowed to cause some harm to the interests, protected by the criminal law. The author provides an overview of the institution of legitimate harm (criminal defenses).

Keywords: crime, necessary defense, extreme necessity, execution of an order, performance of professional duties, Criminal Code of 1903, situations of legitimate harm (criminal defenses), history of the criminal law evolution.

DOI: 10.12737/19092

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candidate of legal sciences, associate professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: crim@izak.ru

Fraud is a widely-spread offence against property. The article studies issues on improving criminal and legal law on liability for fraud for the purpose of enhancing efficiency in crime prevention. Problems of implementation of new laws on fraud (cl.cl. 159—159.6  of the Criminal Code of the Russian Federation) remain unsolved. The author analyzes characteristics of common and special fraud components, and provides different judgments on the issue, published in legal literature. The author puts forward proposals on optimization of criminal legislation in this area.

Keywords: criminal legislation, public security, fraud, classification of offences, punishment.

DOI: 10.12737/19093

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candidate of legal sciences
The National Centre of Legislation and Legal Research of the Republic of Belarus
1a, Berson st., Minsk, Republic of Belarus, 220050
E-mail: Ziman81@mail.ru

The article analyzes objective and subjective characteristics of elements of the violation of the right to freedom of worship and religions. In particular, the author investigates disposition of public actions that express obvious disrespect for the society with the aim to insult religious feelings of believers. The author notes timeliness of legislative recognition of this law which is in line with modern development of public relations and foreign best practice. The author calls into question the relevancy of establishing goals as an obligatory element of corpus delicti. The author pays attention to the contentious nature of article 148 of the Criminal Code of the Russian Federation and article 5.26 of the Code of the Russian Federation on Administrative Offences and the absence of the due mechanism to overcome it in the criminal law science. Following the results of the research the author proposes changes to the criminal law to ensure the principle of inevitability of criminal liability and protection of the right to freedom of worship and religions guaranteed by the Constitution.

Keywords: criminal law, insult of religious feelings of believers, freedom of worship, public and religious safety, administrative responsibility.

DOI: 10.12737/19094

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candidate of legal sciences, associate professor
Togliatti State University
14, Belorusskaya st., Togliatti, Russia, 445667
E-mail: svetlana-vershinina@ya.ru

Revealing the legal nature of criminal procedural coercion, the author recognizes its dependency on the procedural obligations of the parties to the judicial procedure which, being enshrined in the existing law, form a model of proper behavior and determine the kind, scope and content of possible and necessary force in criminal proceedings. On this basis the author analyzes the procedure presented in the science, definition of the concept and system of criminal procedural coercion and concludes about the multidimensionality of understanding the procedural coercion and the need for its research in three areas: 1) theoretical concept explaining this phenomenon from the standpoint of social significance, and expressing a certain vision of this phenomenon in the relevant historical period; 2) as legal education covering a specific set of legal provisions governing compulsion in criminal proceedings, and that are in line with the logical structure of the rules of law; 3) as a set of coercive measures envisaged by the Code of Criminal Procedure, the contents of which include on the one hand, real actions and/or decisions of officials, who apply coercion, and, on the other hand,  procedural rights and obligations of participants who are exposed to compulsory coercion.

Keywords: criminal-procedural coercion, concept of procedural coercion, legal nature of coercion, coercive measure, rule of law, sanction, coercion.

DOI: 10.12737/19095

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The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: 3263954@mail.ru

This article inspects the significance of the system of levels of control proceedings as a form of supervision over judicial power in the Russian criminal legislation. The article features the analysis of changes, made to the Russian Procedural Criminal Code by Federal law of 29.12.2010 N 433, related to the system of reviewing court’s decisions in criminal process. The author inspects features of legal concepts of the European court of human rights, reflected in relevant regulations concerning legal certainty, stability of courts’ decisions and ensuring the convicts’ right to efficient justice in the existing forms of reviewing sentences in the Russian criminal process. The author draws the conclusion that the absence of necessary statutory regulations complying with the international decrees, and clear methodological recommendations regarding meeting the international law requirements on ensuring stability and consistency of sentences form objective reasons for weakness of the judicial practice in this area. 

Keywords: appeal, cassation, supervision, review of sentence, court’s decisions, legal force, principle of legal certainty, principle of legal stability, justice.

DOI: 10.12737/19220

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candidate of legal sciences
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ecology8@izak.ru

In the modern context the necessity of comprehensive protection of flora increases. Meanwhile, the Russian legislation fragmentarily regulates the use and protection of vegetation outside forest lands. The legal regime of greenery in cities and other settlements is regulated by local laws, which are not always optimal. It is necessary to draft a federal law on the plant world containing a definition of species of flora, as well as differentiation between the scope of the legislation on flora and related branches, the forest legislation, in the first place. The article analyzes other countries’ experience in dealing with these issues which will enable to develop optimal approaches to the formation of legislation in this sphere of public relations.

Keywords: federal law, plant world, forest legislation, flora, greenery, protection and use of natural resources, foreign legislation.

DOI: 10.12737/19221

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doctor of legal sciences, associate professor
Institute of Law of the National Research Tomsk State University
36, Lenin avenue, Tomsk, Russia, 634050
E-mail: bes2@sibmail.com

The term ecologization (“greening”) is becoming increasingly common for scientific studies and legal acts. The present article is devoted to the ecologization problem of one sector of the Russian economy. This study is aimed at formulation of theoretical statements on the construction industry ecologization, analysis of the current legislation with regard to ensuring this process, as well as at identification of the existing defects of legal regulation of corresponding relations. The study shows the importance of greening for the country's economy, the author proposes to define greening as a complex of diverse measures, united by a single purpose. As one of the ways to ensure the greening in the construction industry the author proposes a conceptual approach to the land development as a specific type of management, as an activity that has an integrated impact on the environment and determines a long-term prospective use of the relevant territory. Based on the analysis of the current legislation on natural resources, the author suggests some changes in the forest, water, town planning legislation and legislation on subsoil.

Keywords: ecologization, greening, construction, development of land, law on wildlife management.

DOI: 10.12737/19222

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doctor of legal sciences, professor
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office2@izak.ru

Protection of a foreign investor is usually based on the national Law of the State — participant of the investment dispute. This is envisaged by Article 42 of the Washington Convention on Settlement of Investment Disputes between States and Nationals of Other States of 1965. The same article allows applying in certain cases the principles and the rules of international law to settle the conflict. It is an ordinary ICSID practice to judge on the jurisdiction of the ICSID arbitration basing on the rule of bilateral investment agreements between the governments of States, which are the international agreements fixing mutually favourable investment regime between the States — Parties to the Agreement. The incorrect interpretation of the Articles of the Agreement leads to expansion of the sphere of jurisdiction of ICSID arbitration and the infringement of the basic principle of international law on respect of sovereignty of a State. Such interpretation also makes it difficult to apply the European Law as an applicable law in the settlement of investment disputes against the States – members of the European Union.

Keywords: interpretation of the law, investment disputes, Washington convention, the principles of international Law, Bilateral Investment Treaties (BITs).

DOI: 10.12737/19223

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candidate of legal sciences
Kutafin Moscow State Law Academy
9, Sadovaya-Kudrinskaya, Moscow, Russia, 123995
E-mail: oilinskaya@mail.ru

The author deals with the issue, that has been widely considered in a number of scientific researches and has been regularly raised by Japan, — the problem of the so called “northern territories”. Having analyzed various international legal instruments, domestic and foreign scientists’ research papers, the author pays attention to some translation inaccuracies between the original text and the text in the Japanese language in the Simoda treaty, 1855, and the Saint-Petersburg treaty, 1875. Those mistakes have been used by Japan to prove the thesis that the term “the Kurils” doesn’t include Iturup, Kunashir, Shikotan and the Habomais. Besides, special attention is paid to the analysis of international legal instruments that were adopted during and after the World War II, for the purpose of ascertaining whether the Japan territorial claims are well-grounded. At the end of the article the author offers the way to overcome the long-standing “Kuril problem”.

Keywords: the Kurils, the Simoda treaty 1855, the Yalta agreement 1945, San-Francisco Peace treaty 1951, Declaration of 1956, territorial delimitation, Russian-Japanese relations.

DOI: 10.12737/19224

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The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: olgbelusva@rambler.ru

The article covers the questions of comparative analysis of conflict-of-law regulation of obligations, arising from faulty negotiations of treaties in the Russian legislation and the European law. Such regulation is envisaged in article 1222 1  of the Civil Code of the Russian Federation and in article 12 of the Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). The author considers conflict-of-law regulation of pre-contractual relations from the point of view of the following aspects: possibility of applying the agreement about the law chosen by the parties to regulate their pre-contractual relations; applying the contractual connecting factor to determine the law applicable to precontractual relations; exploration of other connecting factors applicable to the precontractual relations in case of impossibility to determine the applicable law on the basis of the contractual connecting factor. The author’s conclusion contains the results of the comparative analysis, such as deduction of common and specific features of the Russian and European conflict-of-law regulation of the above-mentioned group of obligations. Also the author offers some recommendations on the improvement of the Russian legislation.

Keywords: pre-contractual relations, negotiations, conclusion of a contract, applicable law, Russian legislation, law of the European Union, comparative analysis.

DOI: 10.12737/19229

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doctor of legal sciences, professor
The Law Institute of the Immanuel Kant Baltic Federal University
6, Frunze st., Kaliningrad, Russia, 236006
E-mail: ekkochetkova_25@mail.ru

The article focuses on the system of measures for preventing corruption in the courts of general jurisdiction, in conjunction with the problem of strengthening the guarantees of independence of judges. With social significance of the judicial system rising, the need has redoubled for finding measures of strengthening guarantees of independence of judges, prevention of corruption in the court system, enhancing public confidence and trust in justice, increasing the openness of the judicial system for the needs of the civil society. To resolve the task in hand, the author carries out a comparative - law analysis of the legislation that regulates the relations in the judicial field, providing critical evaluation of certain provisions of the laws “The Status of Judges in the Russian Federation”, “The Judicial System of the Russian Federation”. The author reveals main shortcomings and gaps in the legislation which have a negative impact on the guarantees on strengthening the independence of judges. Excellent moral and professional qualities of judges, their independence form cross-cutting issues of developing a system of measures to combat corruption in courts. The author puts forward proposals to improve the legislation, capable of strengthening the guarantees of independence of judges and becoming an effective means of preventing corruption in the courts of general jurisdiction.

Keywords: corruption, independence of judges, anti-corruption legislation, anti-corruption measures.

DOI: 10.12737/19231

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The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: social7@izak.ru

This scientific article deals with social guarantees for judges at work. Social support for retired judges forms an integral part of social security and is one of the labor guarantees of the rights for judges. The article tackles the question of financial security of judges, which is one of the guarantees of the independence of judges. The subject of the study is the special status of retired judges, which guarantees proper administration of justice, and permits to impose high requirements to judges and allows keeping confidence in their competence and independence. The article also considers the issue of a lifetime allowance for judges after their retirement. The author notes that the most important guarantee for retired judges is their pension coverage. This guarantee is expressed, in particular, in the fact that judges have the priority right to choose the type of pension coverage.

Keywords: pension coverage of judges, labor guarantees of judges, material security of judges, allowance, granting of vacations, order of bringing to disciplinary responsibility, independence of judges.

DOI: 10.12737/19232

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